Mental Health Acts 1983 and 2007

The 2007 Mental Health Act made several key changes to the 1983 Mental Health Act, which laid down provision for the compulsory detention and treatment of people with mental health problems in England and Wales.

Whereas the 1983 MHA focused on strengthening patients’ rights to seek independent reviews of their treatment, the 2007 MHA is largely focused on public protection and risk management. The amended legislation extends the powers of compulsion and introduces compulsory community treatment orders, making patients’ compliance with treatment a statutory requirement.

There are also changes to the roles of professionals – for example, the title of approved social worker is being replaced by ‘approved mental health professional’, allowing members of other professions to make assessments and referrals for the first time. However, much of the framework of referrals and treatment remains the same.

After a lengthy consultation period, a code of practice was published in advance of the 2007 MHA coming into force on 3 November 2008.

Adults requiring in-patient treatment can be informally admitted of their own accord, or detained under sections 2, 3 and 4 of the MHA as it will stand after 3 November 2008:

Section 2 of the 1983 MHA: Admission for assessment

An approved mental health professional (this replaces the role of the approved social worker – see below under the 2007 amendments) or nearest relative can apply for admission for assessment, which can last up to 28 days. Either party must have seen the person in the previous 14 days. The admission must be authorised by two doctors, who should both agree that:

a) The patient is suffering from a mental disorder of a nature or degree that warrants detention in hospital for assessment; and

b) The patient ought to be detained for his or her own health or safety, or the protection of others.

The patient can be discharged by a responsible medical officer (the role is being replaced by responsible clinician – see below under the 2007 amendments), hospital managers, the nearest relative, or the Mental Health Review Tribunal (MHRT).

Section 4 of the 1983 MHA:Admission for assessment in cases of emergency

An approved mental health professional or nearest relative can apply for admission, having seen the patient in the previous 24 hours. A patient can be detained for up to 72 hours, after one doctor has confirmed that:

a)The detention is of “urgent necessity”; and

b)That waiting for a second doctor to approve the detention under section 2 would cause an “undesirable delay”.

Section 3 of the 1983 MHA: Admission for treatment

A nearest relative can apply for admission or, in cases where the nearest relative does not object, or has been displaced, or it is not reasonably practicable to consult him or her, an approved mental health professional. Detention can last for up to six months after two doctors have confirmed that:

a) The patient is suffering from mental disorder of a nature or degree which makes it appropriate for the patient to receive medical treatment in a hospital; and b) The treatment is in the interests of his or her health and safety and the protection of others; and c) Appropriate treatment must be available for the patient.

Section 3 admissions can be renewed for a further six months and thereafter for periods of 12 months at a time. The patient can be discharged by the responsible clinician, hospital managers, the nearest relative (if the responsible clinician refuses, the nearest relative can apply to a MHRT within 28 days), or the MHRT.

Section 136: Police powers to remove from a public place to a place of safety

Police officers have the power to remove from a public place anyone deemed to be mentally disordered and requiring immediate care and control, to a place of safety. The preferred places of safety include hospitals and care homes, although police stations can be used as a last resort. People can be held under section 136 for up to 72 hours, within which time they should be assessed by a doctor and an AMHP.

Definition of mental disorderA single definition of mental disorder, replacing the categories of disorder found in the 1983 MHA. The definition changes from the four categories of “mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disability or disorder of mind” to “any disorder or disability of the mind”. People with learning disabilities will not be considered to be suffering from a mental disorder, however, unless the disability is “associated with abnormally aggressive or seriously irresponsible conduct”. Dependence on drugs or alcohol is no longer categorised as a mental disorder.

Criteria for detentionThe so-called “treatability test” regarding long-term powers of detention is replaced by a new “appropriate treatment” test.This means that patients cannot be detained unless professionals can guarantee the availability of medical treatment, which includes psychological intervention, which is appropriate to each case.

Professional rolesThe approved social worker role is being replaced by the approved mental health practitioner role, which could potentially be filled by anyone with experience in supporting people with mental health problems, such as nurses, occupational therapists and psychologists. In addition, responsible medical officers no longer have to be medical practitioners. This role is being replaced by the responsible clinician role, which could be filled by social workers or any of the other professions listed above. However, medical recommendations for detentions under sections 2 and 3 of the 1983 MHA will still have to be made by two ‘registered medical practitioners’.

Nearest relativesPatients have the right to apply for the removal of their nominated nearest relative if they feel that person is unsuitable. Civil partners are added to the list of eligible relatives, affording them the same status as husband and wife. (Under the 1983 MHA, nearest relatives and approved social workers can apply for compulsory admission to hospital for a patient who is not involved in criminal proceedings.)

Community treatment ordersCommunity treatment orders replace the ‘supervised discharge’ of the 1983 MHA. Where certain criteria are met, patients who are discharged from hospital will be allowed to live at home under supervision to ensure they continue with the medical treatment that they need. Under section 17E, responsible clinicians can recall patients to hospital if they do not comply with conditions such as making him or herself available for examination.

Mental Health Review TribunalsCommunity patients will be referred to a Mental Health Review Tribunal (MHRT), to determine whether they should be formally discharged, as well as those patients detained in hospital. Hospital managers should make the referrals six months after “the applicable day”. Under the 2007 Tribunals, Courts and Enforcement Act, the MHRT in England will sit within a Health, Education and Social Care chamber of a new two-tier Tribunals Service. This is due to commence on 3 November 2008, subject to parliamentary clearance.

Age-appropriate servicesHospital managers must ensure that patients aged under 18 admitted to hospital for mental disorder are accommodated in an environment that is suitable for their age.

Electro-convulsive therapyWith the exception of emergencies, electro-convulsive therapy shall not be given to a patient without his or her consent. Where the patient lacks capacity to consent, the treatment can only be given if this is appropriate and does not conflict with the safeguards set out in the 2005 Mental Capacity Act.

AdvocacyIndependent mental health advocates should be made available to visit “qualifying patients”, who include those liable to be detained, subject to guardianship, or community patients. The appropriate national authority (the UK government in England the Welsh Assembly in Wales) is responsible for providing this service.

Other amendments included in the 2007 Mental Health Act

The 2007 MHA was also used to introduce deprivation of liberty safeguards through amending the 2005 Mental Capacity Act, while the rights of victims were extended by amending the Domestic Violence, Crime and Victims Act 2004.

Since 1983 the Mental Health Act Commission has monitored the implementation of the Mental Health Act, with a focus on upholding the rights of detained patients. In April 2009 the functions of the MHAC will be taken over by the Care Quality Commission, which will also replace health and social care regulators the Healthcare Commission and Commission for Social Care Inspection.

In 2008 the Department of Health asked the Care Services Improvement Partnership to begin supporting the implementation of the 2007 MHA. Within this remit CSIP is carrying out five national projects in the following areas: administration; advocacy; children and young people; supervised community treatment; and training.

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